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COMMONWEALTH v. KEELER (03/19/70)

decided: March 19, 1970.

COMMONWEALTH
v.
KEELER, APPELLANT



Appeal from judgment of Court of Common Pleas of Mercer County, June T., 1968, No. 44, in case of Commonwealth of Pennsylvania v. Norman Keeler.

COUNSEL

Michael J. Wherry, for appellant.

Robert F. Banks, Assistant District Attorney, with him Edward M. Bell, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J. Watkins, Montgomery, and Jacobs, JJ., concur in the result. Wright, P. J., would affirm on the opinion of Judge Acker.

Author: Hoffman

[ 216 Pa. Super. Page 194]

Appellant was charged with possession of a firearm in violation of the Uniform Firearms Act, Act of June 24, 1939, P. L. 872, § 628, as amended, 18 P.S. § 4628. After several proceedings relative to the case, appellant was removed from the Mercer County Jail and transferred, first to the Crawford County Jail, then to the Western Diagnostic and Classification Clinic in Allegheny County. Late in the evening before trial, he was returned to the Mercer County Jail. He was clothed, at the time, in the uniform supplied by the Allegheny County Clinic. At 11:00 a.m. the next morning, the public defender was notified that appellant was to be ready for trial. The defender attempted to secure civilian clothes for appellant. They also contacted appellant's sister to bring such clothes if available. When such clothes failed to arrive, the public defender moved to continue the case. The court overruled the motion.

At 1:55 p.m., the court, over counsel's objections, ordered appellant into the courtroom in front of the

[ 216 Pa. Super. Page 195]

    jury panel. He sat there while the jury was selected. At 2:30 p.m., or shortly thereafter, civilian clothes arrived. Appellant thereupon changed his attire. He moved that the jury be disqualified before they were sworn. The motion was overruled. Appellant was convicted, and from judgment of sentence he brings this appeal.

A photograph was taken of appellant in the attire he was required to wear before the jury. It is the kind of attire that, with the advent of movies and television, is easily recognized by the general public as the clothes commonly worn by prisoners. Since appellant objected to being presented in such a manner, we hold that the question is properly before this Court whether reversible error was committed by the trial court.*fn1

Under our system of criminal justice, defendants are presumed innocent until proven guilty. The burden is on the state to bring forth evidence to overcome that presumption and to prove defendant guilty beyond a reasonable doubt. Such evidence, however, must be competent and probative. It cannot rely for its value upon prejudice and fear. It cannot insinuate without rationale. See, e.g., Commonwealth v. Trowery, 211 Pa. Superior Ct. 171, 235 A.2d 171 (1967); Commonwealth v. Bruno, 215 Pa. Superior Ct. 407, 258 A.2d 666 (1969).

A defendant in prison garb gives the appearance of one whom the state regards as deserving to be so attired. It brands him as convicted in the state's eyes. It ...


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